AG2005/4480, Transcript of Proceedings [2005] AIRCTrans 1591 (22 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12232-1

SENIOR DEPUTY PRESIDENT LLOYD

AG2005/4480 AG2005/4481

APPLICATION BY GIPPSLAND PORTS COMMITTEE OF MANAGEMENT INC & AUSTRALIAN MARITIME OFFICERS' UNION, THE-SOUTHERN AREA AND OTHERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/4480)

GIPPSLAND PORTS CERTIFIED AGREEMENT 2002
s.170MD(2) - Variation of certified agreement by employer or union
(AG2005/4480)

MELBOURNE

2.14PM, THURSDAY, 14 JULY 2005

PN1

MR M O'LEARY: I appear on behalf of Gippsland Ports and with me is MR G KHOLMAN.

PN2

MR D CUSHION: I appear, contrary to the letter you might have, for the MUA.

PN3

MR S GROVES: I appear on behalf of Australian Maritime Officers' Union.

PN4

MS J THOMPSON: I appear for the Australian Institute of Marine and Power Engineers.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Who would like to lead?

PN6

MR O'LEARY: Yes. Senior Deputy President, there are two applications obviously, the 170MD part 2 and the 170LJ. I understand that you want to deal with the 170MD first. We are quite happy to deal with them jointly.

PN7

THE SENIOR DEPUTY PRESIDENT: You can make submissions jointly if you like.

PN8

MR O'LEARY: This application has been made on behalf of Gippsland Ports. The documents have all been filed in respect of both applications. They include obviously the application for variation and also the Gippsland Ports Certified Agreement 2002 which has been varied, and obviously the April Hamer 170LJ agreement. All aspects of the requirements of the Act have been met in the form of preparing a negotiation and the election and the voting on the documentation that has been required. And we are seeking the assistance of the Commission in registering these documents. If there are any specific questions that you may have, I am more than happy to deal with those but, as I say, all the correct documentation has been provided and along with the unions, we support and seek the assistance of the Commission in registering the documentation. If it pleases.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr O'Leary. Mr O'Leary, in relation to the application to vary the agreement, Gippsland Ports agreement, the Commission is required by section 170MD(3) that it must approve the variation and must not approve the variation unless it is satisfied that a valid majority of employees whose employment is subject to the agreement at the time generally approve the variation. What is the documentation that supports that? Can you just help me on that please?

PN10

MR O'LEARY: Yes. Senior Deputy President, the actual process that was undertaken was the presentation of the variation agreement itself which is - you have a copy of it, was provided to the general membership, the general workforce within the port and that was then voted on through a ballot process and the voting numbers are 22 in favour and 13 against. I don't think you have in front of you anything that actually refers directly to that process other than - and so I think on behalf of the Gippsland Ports we can confirm that that process did take place. And I am sure that my colleagues on the other side of the table will endorse that process.

PN11

We do have an actual problem in the first instance and that caused some of the delay, the actual variation agreement as it was first presented was not presented in the correct form and so it was redone and a further 14 day process was put together. So I would seek your indulgence to rely on both the verbal application here today that Gippsland Ports proceeded down a path that was consistent with the Act and, as I say, I am sure my colleagues will endorse that process as well.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Cushion?

PN13

MR CUSHION: Yes, for our part, Senior Deputy President, we are supporting the certification of the agreement. I understand there is some problems. I am just a bit late into this, I have come off the bench for this one so - there was some delay in the application and that was the ill health of our legal advisor and that's why the delay. And we would also support Mr O'Leary that after a fairly exhaustive process there was a vote to place on the variation and that vote was in the affirmative to accept that. So we are certainly supporting the application for certification of the agreement and the variation.

PN14

THE SENIOR DEPUTY PRESIDENT: Good.

PN15

MR CUSHION: Thank you, Commissioner.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Groves?

PN17

MR GROVES: Thanks, Senior Deputy President. Likewise I support the submission made by Mr O'Leary both for the certification of the Gippsland Ports April Hamer Operating but also the variation. My information on the relation to the ballot and that, the original ballot took place on 3 March and as Mr O'Leary pointed out there was some problems there. So they had a subsequent ballot. That was done on the 22 and 23 March with the vote counted on the 30th. And as Mr Cushion has indicated, and the correspondence to you from the MUA indicate the delay in making the application to the Commission was due to some personal illness, et cetera, and we would ask you under your power to give us discretion in that area. I will report to you, your Honour, that the employment in the Gippsland Ports Committee is very stable and there is no significant change in the number of employees.

PN18

These agreements have been around in the main for the second and third generation now, so the employees are very much aware of the terms and conditions and this simply from the April Hamer point of view, came about as a result of a reduction of manning and obviously some minor adjustments to the salaries. So the employees are very much aware of the operation and terms and conditions that they currently enjoy. If the Commission pleases.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Groves. Ms Thompson?

PN20

MS J THOMPSON: If the Commission pleases. We concur with Mr O'Leary's submission and my colleague's supporting statements. We would ask that you under discretion under, I think it's section 111(r), at the time and certify the agreement. Thank you.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Just one final point. Mr O'Leary, I might ask you initially. That was my one comment, documentation I received didn't have schedule 2 attached to it when the agreement which was first submitted on the Commission's file. That was subsequently provided. Now, I presume that the people voted on an agreement which had schedule 2 included? Is that correct?

PN22

MR O'LEARY: That is correct, yes.

PN23

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. I will deal first with the application to vary the existing agreement. This is a consent application pursuant to section 170MD(2) of the Workplace Relations Act to vary the Gippsland Ports Certified Agreement 2002. The effect of the variation is to remove clauses relating to the dredge vessel, the April Hamer, which will now be subject to its own agreement. The application is supported by the Gippsland Ports Committee of Management, the Maritime Union of Australia, Australian Maritime Officers' Union and Australian Institute of Marine and Power Engineers. All of these organisations are party to the agreement to be varied. Accordingly, I find the requirements of section 170MD(3) of the Act satisfied and the agreement will be varied.

PN24

Variation to the agreement shall come into force from 14 July 2005 and shall remain in force until 10 October 2005. I turn now to the agreement, the other new agreement. Firstly the application was lodged some 32 days beyond time. In accordance with section 111(1)(r) of the Act I determined to extend the prescribed time for the lodgement of the application. I am satisfied that the agreement was reached through a process consistent with that set out in section 170LJ of the Act. I am satisfied that the requirements of section 170LT of the Act are met. Also I am satisfied that nothing arises from section 170LU of the Act that would require the Commission to refuse to certify the agreement. Accordingly, I will certify the Gippsland Ports April Hamer Operating Agreement and the agreement will come into operation from 14 July 2005. The agreement shall remain in force until
10 October 2007. Commission is adjourned.

<ADJOURNED INDEFINITELY [2.27PM]